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2009 DIGILAW 5532 (MAD)

R. Devaraj v. M. Veerappa Gounder & Another

2009-12-11

R.BANUMATHI

body2009
Judgment This Second Appeal arises out of the concurrent findings of Courts below partly dismissing Plaintiffs suit for Permanent Injunction in respect of B schedule property. Unsuccessful Plaintiff is the Appellant. .2. There are two items of suit properties. A schedule property is measuring 3 Ares 5 Centi Ares equivalent to 3294 sq.ft. in Re-survey No.9/30, Cad No.387/Pt 1021 and Paymash No.2272 in Poornankuppam Revenue Village. B schedule is at the extreme western end of A schedule property. 3. Case of Plaintiff is that suit property originally belonged to his father Rajamani Natar. Plaintiffs father Rajamani Natar and his mother Kuppammal and brothers and sisters have executed Ex.A1 settlement deed [19.03.1998] settling the properties infavour of Plaintiff. Plaintiff is in possession and enjoyment of both A and B schedule properties. Revenue records also stand in the name of Plaintiff and Revenue department also issued Ex.A2 Chitta infavour of Plaintiff. Western end is used by the Plaintiff as a place for dumping of garbage and waste materials besides using it as a cow shed. Further case of Plaintiff is that Defendants owned smaller extent of property on the southern side and Defendants have no right or title over any portion of the suit property. Plaintiff averred that Defendants are trying to trespass into the suit property in the second week of February 2002 and the same was brought to the notice of village panchayatdars. Defendants have raised Portia tree in the extent belonging to the Plaintiff that is exactly on the mid south of A schedule property and therefore, Plaintiff seeks for Permanent Injunction. 4. Resisting the suit, Defendants filed written statement contending that under Ex.B1 sale deed [16.05.1966], Plaintiffs father purchased 4 Kuzhies 2 Veesams i.e. 2376 sq.ft. Defence plea is that Plaintiffs father Rajamani Natar was not entitled to the entire extent of 3 Ares 5 Centi Ares equivalent to 3294 sq.ft. and therefore, Plaintiffs father cannot convey to Plaintiff the entire extent of suit property. According to Defendants, 1st Defendant owns an extent of 2 Kuzhies 3 Veesams inherited from his ancestors. It is further averred that one Rajambal, wife of Periasamy had settled an extent of 2 Kuzhies 3 Veesams in Cad. No.387/pt by way of gift deed dated 01. 1996. Case of Defendants is that 1st Defendant had purchased an extent of 1 Kuzhi 1 Veesam from one Kaliappan through registered sale deed dated 25. 1970. It is further averred that one Rajambal, wife of Periasamy had settled an extent of 2 Kuzhies 3 Veesams in Cad. No.387/pt by way of gift deed dated 01. 1996. Case of Defendants is that 1st Defendant had purchased an extent of 1 Kuzhi 1 Veesam from one Kaliappan through registered sale deed dated 25. 1970. Defendants property is situated on the west of Plaintiffs property and since Defendants are in enjoyment of lesser extent, they referred the matter to village panchayat who advised the Plaintiff to remove compound wall and give up Defendants property and Plaintiff is not entitled to Permanent Injunction. .5. On the above pleadings, five Issues were framed. On the side of Plaintiff was examined as PW1 and PWs.2 and 3 were examined. Exs.A1 to A3 were marked. On the side of Defendants, 2nd Defendant was examined as DW1 and DWs.2 and 3 were examined and Exs.B1 to B5 were marked. Advocate-Commissioner was examined as CW1 and through him Exs.C1 to C4 were marked. 6. Upon consideration of oral and documentary evidence, trial Court held that even though Plaintiff claims to be in possession of entire extent of 3294 sq.ft. is not entitled to Permanent Injunction for protection of suit property. Trial Court further held that Plaintiff will be entitled to protect his possession only in so far as what his father has purchased under Ex.B1 sale deed and not beyond that and decreed the suit in part granting Permanent Injunction to an extent of 2376 sq.ft. and declined Permanent Injunction in respect of remaining extent i.e. B schedule property. 7. Being aggrieved, Plaintiff filed an appeal in A.S.No.16/2007. Lower Appellate Court held that without mentioning the extent of B schedule, Court cannot come to the conclusion that as to the extent of property in possession of Plaintiff. Observing that Plaintiff has not chosen to examine his father, lower Appellate Court held that Ex.A1 settlement deed [19.03.1998] cannot establish Plaintiffs case. Lower Appellate Court confirmed the findings of trial Court that Plaintiff would be entitled to protection only insofar what was settled under Ex.A1 settlement deed and on those findings, lower Appellate Court dismissed the appeal. 8. Being aggrieved by the concurrent findings, Plaintiff has filed this Second Appeal. Lower Appellate Court confirmed the findings of trial Court that Plaintiff would be entitled to protection only insofar what was settled under Ex.A1 settlement deed and on those findings, lower Appellate Court dismissed the appeal. 8. Being aggrieved by the concurrent findings, Plaintiff has filed this Second Appeal. With consent of both the counsel for Appellant and Respondents, main Second Appeal itself was taken up for final hearing and arguments were advanced on the following substantial questions of law:- .(i) In a suit for bare Injunction, the Plaintiff having established his possession and even if no title is established, whether the Courts below are right in dismissing the suit with reference to a portion of A schedule property on irrelevant grounds? .(ii) When it is settled in Law that even a trespasser in possession can be evicted only by the owner by following due process of Law, Still are the Courts below right in dismissing the suit with reference to a portion of A schedule property? (iii) Except filing a Written Statement claiming title to a portion of suit property, the Defendant having not produced any satisfactory evidence to displace possession of the disputed property by the Plaintiff, still are the Courts below right in dismissing a portion of A schedule properties? 9. Mr.Ravichander, learned counsel for Appellant contended that Defendants have categorically stated that Plaintiff is in possession of the suit A and B schedule property and while so, trial Court erred in restricting injunction to 2376 sq.ft. It was further argued that lower Appellate Court erred in framing the point whether Plaintiff is in possession of entire extent of 3294 sq.ft. which was not an issue at all and lower Appellate Court erred in saying that Plaintiff is not in possession of entire extent of 3294 sq. ft. It was further argued that when Plaintiff is proved to be in possession, Plaintiff is entitled to resist interference from any person. Reliance was placed upon (2004) 1 SCC 769 [Rame Gowda (dead) by LRs. v. M.Varadappa Naidu (dead) by LRs. and another] and 2004 SAR (Civil) 228 [ Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others]. 10. Reiterating findings of Courts below, Mr.Vedantham Srinivasan, learned counsel for Respondents contended that Defendants have categorcially denied Plaintiffs enjoyment of the suit property and while so, it cannot be contended that Defendants have admitted possession of Plaintiff. and another] and 2004 SAR (Civil) 228 [ Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others]. 10. Reiterating findings of Courts below, Mr.Vedantham Srinivasan, learned counsel for Respondents contended that Defendants have categorcially denied Plaintiffs enjoyment of the suit property and while so, it cannot be contended that Defendants have admitted possession of Plaintiff. Main contention of Defendants is that Plaintiffs father having purchased 2376 sq.ft. under Ex.B1 sale deed, Plaintiff cannot claim more than what his father purchased and Plaintiff is not entitled to the equitable relief of Permanent Injunction. In support, reliance was placed upon 1987 (1) MLJ 300 [Kanthammal v. Bysani Sriramulu Chetti and another] and (2001) 4 SCC 322 [K.Seetharam v.B.U.Papamma and another]. 11. Under Ex.B1 sale deed [16.05.1966], Plaintiffs father Rajamani Natar purchased 4 Kuzhies 2 Veesams i.e. 2376 sq.ft. Claiming right and possession in both A and B schedule properties, Plaintiff relies upon Ex.A1 settlement deed [19.03.1998] under which 3 Ares 5 Centi Ares i.e. 3294 sq.ft. was settled infavour of Plaintiff by his father, mother, brothers and sisters. Even though, only an extent of 2376 sq.ft. was purchased by Plaintiffs father, in Ex.A1 settlement deed the extent of property settled is mentioned as 3 Ares 5 Centi Ares equivalent to 3294 sq.ft. in R.S.No.9/30 Cad. No.387/pt. Difference is 918 sq.ft. which is in dispute. As concurrently held by the Courts below, Plaintiff could claim only 2376 sq.ft. which was purchased by his father under Ex.B1 sale deed. 12. Absolutely, there is no evidence as to how Plaintiff got excess of 918 sq.ft. Equally, there is no evidence as to from which date Plaintiff came to be in possession of excess extent. PW2-Ponnusamy and PW3-Govindaraj were examined. In his evidence, PW2 has stated that B schedule measures length 15 feet and breadth 10 feet. In his evidence, PW3 has stated that B schedule measures length 15 feet and breadth about 20 feet. Evidence of PWs.2 and 3 does not make it clear as to how Plaintiff came in possession of the property and is entitled to protect his possession. 13. In his evidence, PW3 has stated that B schedule measures length 15 feet and breadth about 20 feet. Evidence of PWs.2 and 3 does not make it clear as to how Plaintiff came in possession of the property and is entitled to protect his possession. 13. In Paragraph 10 of the written statement Defendants averred that Plaintiff raised a compound wall on the eastern side of their property and Defendants referred the matter to village panchayatdars and Village Panchayatdars advised the Plaintiff to remove the compound wall and without complying the advice of village panchayatdars, Plaintiff gave a false complaint to the Police Station and thereafter put up a thatched hut. Defendants further averred that Plaintiff has filed the suit just for the purpose of justifying illegal encroachment over Defendants property. 14. Laying emphasis upon the averments in Paragraph 10 of written statement and evidence, learned counsel for Appellant contended that DW1 himself admitted that Plaintiff has encroached his portion and therefore, Plaintiff is entitled to get the relief of Permanent Injunction. It was further argued that on the strength of his possession, Plaintiff is entitled to resist interference from other person. 15. Main contention of Appellant is that once possession of the Plaintiff is accepted even if he has failed to establish his title, Plaintiff is entitled for Permanent Injunction restraining the Defendant from forcibly entering upon the suit property. In support of his contention that the occupant in "settled possession" cannot be dispossessed without recourse to law, learned counsel for Appellant placed reliance upon (2004) 1 SCC 769 [Rame Gowda (dead) by LRs. v. M.Varadappa Naidu (dead) by LRs. and another] and 2004 SAR (Civil) 228 [ Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others] wherein the Supreme Court held that "settled possession" gives right to possession and that even the rightful owner may only recover it by taking recourse to law. Considering the scope of "settled possession" in Rame Gowdas case, the Supreme Court held as follows:- "9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Administration, AIR 1968 SC 702 ; Puran Singh v. State of Punjab, (1975) 4 SCC 518 and Ram Rattan v. State of U.P., (1977) 1 SCC 188 . The authorities need not be multiplied. In Munshi Ram case, AIR 1968 SC 702 it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case, (1975) 4 SCC 518 the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession": .(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; .(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession. 10. In the case of Munshi Ram, AIR 1968 SC 702 and Puran Singh, (1975) 4 SCC 518 the Court has approved the statement of law made in Horam v. R., AIR 1949 All 564 wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property." 16. Applying the ratio of the above decision when we analyse facts of the present case, admittedly Plaintiff has no title to the entire extent of 3294 sq.ft. Courts below recorded concurrent findings that Plaintiff has no title to B schedule property. Ex.A1 settlement deed is of the year 1998. It is not known when Plaintiff came to be in possession of B schedule property. As pointed out by the lower Appellate Court that Plaintiff has not chosen to give exact measurement of B schedule property. PWs.2 and 3 have given measurement of disputed B schedule property as 15 feet length and about 20 feet breadth and 15 feet length and 10 feet breadth respectively. In the light of prevaricating evidence, it cannot be said that Plaintiff is in "settled possession" of B schedule property. More so, when Plaintiff had not given actual measurement to B schedule property. Hence, applying the ratio of the above decision, it cannot be held that Plaintiff is in "settled possession" and is entitled for protection. .17. Case of Defendants is that B schedule is part of Defendants property and their property is situated on the west of Plaintiffs property. First Defendant has inherited 2 .Kuzhies 3 Veesams from his ancestors. 1st Defendants grand mother Rajambal had settled the property under Ex.B5 settlement deed [08.01.1996] settling the extent of 2 Kuzhies 3 Veesams in Cad. No.387/pt. Under Ex.B4 sale deed [26.05.1970], 1st Defendant had purchased 1 Kuzhi 1 Veesam from one Kaliappan, son of Samikannu Gounder. Defendants have also filed Ex.B3 Provisional Manai Patta showing that Patta was issued in the name of 1st Defendant, Kanniah Gounder and Rajambal for S.No.9/31 in Cad. No.387/pt to an extent of 0.03.50 Hec. 18. Advocate-Commissioner [CW1] has noted that there is a big Portia tree on the western side of the Wall of Plaintiffs house. Case of Plaintiff is that Defendants attempted to rear the Portia tree in his property. As pointed out by the Courts below witnesses including PWs.1 to 3 have admitted the age of Portia tree is about 20 years and it belongs to Defendants. When Portia tree is aged about 20 years, lower Appellate Court presumed that the said portion is in physical possession and enjoyment of Defendants. It cannot be contended that lower Appellate Court erred in presuming possession and enjoyment of Defendants. 19. When Portia tree is aged about 20 years, lower Appellate Court presumed that the said portion is in physical possession and enjoyment of Defendants. It cannot be contended that lower Appellate Court erred in presuming possession and enjoyment of Defendants. 19. In Paragraph 16 of its Judgment, lower Appellate Court observed "....... that the Plaintiff is not in possession and enjoyment of entire extent of suit property i.e. the extent of 3294 sq.ft." It was therefore contended that when the trial Court has arrived at conclusion that Plaintiff is in possession of entire extent of suit property, lower Appellate Court erred in saying that Plaintiff is not in possession of the extent of 3294 sq.ft. The above contention does not merit acceptance. In Paragraph 16 of its Judgment, lower Appellate Court only recorded finding that "Plaintiff is not in possession and enjoyment of the entire extent of suit property i.e. the extent of 3294 sq.ft." As such there is no deviation by the lower Appellate Court from the findings of trial Court. .20. There is no force in the contention of Appellant that on the strength of possession, he is entitled to resist interference from Defendants. A person who is in wrongful possession of the property is not entitled to claim protection by way of injunction against the lawful owner of the property. When a Court comes to the conclusion that Plaintiff is in wrongful possession of the property he cannot be protected by way of an injunction. A trespasser in possession, is not entitled to an injunction as against a true owner. The principle is that the relief of injunction being a relief in equity, the Court cannot aid a person who himself is guilty of doing a wrongful thing. 21. Referring to various decisions and holding that mere possession of the Plaintiff will not enable him to get a decree for injunction against the Defendant, in 1987 (1) MLJ 300 [Kanthammal v. Bysani Sriramulu Chetti and another], this Court held as under:- "11. The mere fact that the plaintiff is in possession of the suit property will not enable her to get a decree for injunction as against the defendant. ......." ............ Reliance was also placed upon the decisions in Nair Service Society v. Alexander AIR 1968 SC 1165 ., Ponnusami v. Pattammal Annachatram AIR 1958 Mad. 497 and Mariumbi v. Yeshwanta, AIR 1970 Bombay 405. ......." ............ Reliance was also placed upon the decisions in Nair Service Society v. Alexander AIR 1968 SC 1165 ., Ponnusami v. Pattammal Annachatram AIR 1958 Mad. 497 and Mariumbi v. Yeshwanta, AIR 1970 Bombay 405. It is contended by learned counsel for the appellant that a person in possession is entitled to keep out the rest of the world from interfering with his possession. I am afraid the proposition of law put forward by learned counsel for the appellant is not supported by the decisions referred to by him as well as the passage in Sethnas Law of Jurisprudence. It is no doubt true that a person in possession can resist the whole world, but the exception is the true owner. A person in possession without any title cannot get any relief against a person who has got a better title. This is made clear by the Supreme Court in Nair Services Society v. Alexander, AIR 1968 SC 1165 . While pointing out the distinction between a suit under S.9 of the Specific Relief Act and a suit upon possession alone, filed after the period specified in S.9 of the Specific Relief Act, the Supreme Court observes thus: "The uniform view of the Court is that if S.9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When however the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is restricted to possession only in a suit under S.9 of the Specific Relief Act, but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one." 22. Plaintiff being in wrongful possession of B schedule property is not entitled to claim protection by way of Permanent Injunction against the lawful owner of the property. Upon analysis of evidence and materials, Courts below recorded concurrent findings that Plaintiff would be entitled to protect his possession only in so far as what his father has purchased [ 2376 sq.ft.] under Ex.B1 sale deed and not beyond that. 23. Upon analysis of evidence and materials, Courts below recorded concurrent findings that Plaintiff would be entitled to protect his possession only in so far as what his father has purchased [ 2376 sq.ft.] under Ex.B1 sale deed and not beyond that. 23. In a catena of decisions, Supreme Court has held that as general rule, where the findings of the Courts below based on evidence and when the Courts below recorded concurrent findings of fact, High Court will not normally interfere with the concurrent findings of the Courts below exercising jurisdiction under Sec.100 CPC. [See 2009 (4) LW 125 (Narayanan Rajendran and another v. Lekshmy Sarojini and others]. 24. In the result, the Judgment of the lower Appellate Court in A.S.No.16/2007 dated 111. 2008 on the file of Principal Subordinate Court, Pondicherry is confirmed and the Second Appeal is dismissed. No costs.